TMI Blog2018 (5) TMI 1185X X X X Extracts X X X X X X X X Extracts X X X X ..... hin 3 months from the date of the order passed by the Appellate Tribunals/Court or other Authority, unless there is any stay on the order of the Appeal Authority/CESTAT/Court (by a Superior Court). In the facts of the present case, it was not pre-deposit within the terms of Section 35F of the Act rather the Department had got the amount deposited during investigation, being out of pocket of the Appellant. But later on failed to establish the duty liability against the appellant and even failed to issue show cause notice. The amount was lying with the Department for more than 4 years without any reason and thus the assessee was entitled for compensation in the shape of interest which was granted to them by the Appellate order dated 13/01/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fund on the ground that the Appellant has not followed the procedure as prescribed in the Central Excise Manual 2004-05 under Chapter 13 Part III Para 4 of the CBEC‟s Excise Manual of supplementary instruction, in respect of duties deposited under protest that the duty deposited by the Appellant was not a pre-deposit in as much as the duty was deposited on the basis of the quantification made by the Department that was communicated through the letter written by the Superintendent (CP) and the directions issued therein; that the provisions of Section 11B were fully applicable because the amount deposited by the Appellant was Central Excise Duty and not the pre-deposit under protest; that the Appellant did not submit any letter or com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the statute. Reliance was placed on the ruling of the Apex Court in M/s Mafatlal Industries Ltd. Vs Union of India, 1997 (89) E.L.T. 247 (SC), and also in the ruling case of M/s Hello Minerals Water Private Ltd. 2004 (174) E.L.T. 422 (Allahabad). Reliance was also made on the ruling in the case of Union of India Vs M/s Metal Distributors Ltd. 1992, (60) E.L.T. 196 (Bombay). 5. The aforementioned Order-in-Appeal attained finality as no further appeal was preferred before any higher Appellate forum by any of the parties. Thereafter, the Assistant Commissioner vide his order dated 09/04/2009 was pleased to disburse the refund of the principal amount, but as regards interest, it was observed that the CBEC vide Circular No.802/35/2004-CX ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er dated 13/01/2009. Also, observing that the directions of CBEC vide the aforementioned Circular is not applicable in the facts and circumstances. 7. Being aggrieved with the subsequent order of the Learned Commissioner (Appeals) dated 27/07/2009, the Revenue preferred Appeal No.3218 of 2009, which it is informed by the Learned Counsel was finally disposed of by this Tribunal vide Final Order No.71642/2017 dated 05/05/2017 observing that interest should be allowed from the date of deposit. 8. Thus, under the facts and circumstances the present appeal against the earlier order of Commissioner (Appeals) dated 13/01/2009, have become infructuous. Accordingly, this appeal is dismissed as not maintainable. ( Dictated Pronounced in Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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